Zoning – County and State Zoning Requirements – Zoning Law Amendment – Definition of ‘A Building’ – County Zoning Ordinance

The Building Code Council’s determination that the Chesapeake is “a building” controls.

We affirmed.

The Chesapeake is a 15,000 square foot vacation home owned by Elizabeth LeTendre and located in Currituck County, North Carolina. For over a decade, Currituck County, LeTendre, and LeTendre’s neighbors, Marie and Michael Long, have been embroiled in litigation over whether the Chesapeake complies with county and state zoning requirements. In Long v. Currituck County, the North Carolina Court of Appeals ruled that the Chesapeake violated a county zoning ordinance. When LeTendre couldn’t bring the house up to code, the County sued her in state court to enforce Long’s mandate and hold LeTendre in contempt if she refused to comply. LeTendre removed the case to federal court, where she sought a declaratory judgment that the Chesapeake now complies with both county and state requirements. In her view, a recent amendment to North Carolina’s state zoning law abrogates Long. The district court agreed with LeTendre. We did as well and affirmed.

To resolve this case, we had to determine whether the zoning law amendment passed by the North Carolina legislature in 2019 abrogated Long and Letendre, as the district court so held. Under the legislative amendment, a county may not “use a definition” of “building” or “dwelling” that “is inconsistent with any definition of those terms . . . in a rule or statute adopted by a State agency, including the State Building Code Council.” N.C. Gen. Stat. §160D-706(b). And we read the amendment not merely to bar inconsistencies in the literal text of the state and county definitions, but also to bar inconsistent applications of those definitions. If the County’s definition or interpretation of “building” in its Ordinance conflicts with the Building Code Council’s rule—here, the state Residential Building Code—the Council’s definition governs. We held that it does, so the amendment makes the Chesapeake compliant with both zoning codes.

Simply put, “building” can’t mean one thing under the Code and something else under the Ordinance. As the Building Code Council implicitly found, a three-wing structure with three foundations (no matter its size) is one building under the Code’s definition. So a three-wing structure with three foundations must likewise be one building under the Ordinance’s definition. Otherwise, the Code and the Ordinance will define “building” inconsistently, in violation of the amendment.

Affirmed.

Currituck County v. Long (Lawyers’ Weekly No. 001-045-24, 17 pp.) (Albert Diaz, J.) Appealed from U.S. District Court for the Eastern District of North Carolina at Elizabeth City (Terrence W. Boyle, J.) Argued: George Nicholas Herman, Brough Law Firm, PLLC, Chapel Hill, North Carolina; George Bullock Currin, Raleigh, North Carolina, for appellants; Scott Elliott Bayzle, Parker Poe Adams & Bernstein LLP, Raleigh, North Carolina, for appellee. On Brief: Stephen V. Carey, Jonathan E. Hall, Michael J. Crook, Parker Poe Adams & Bernstein LLP, Raleigh, North Carolina, for appellee. U.S. Court of Appeals for the Fourth Circuit